Ok, this thread is a kind of data dump of thoughts on this letter, of which I am genuinely unsure what to make. The following is worth what you are paying for it, but it's what I can do based on the text of letter alone—along with a certain institutional knowledge of the DOJ.
First off, thanks to @PaulaReidCBS for actually posting the letter itself. The text matters a great deal.
Second, there is good reason to be concerned about the dangling of the possibility of a special counsel here. The reason, as @nytmike and @maggieNYT emphasize in their story, is that Sessions is under a lot of pressure from Trump himself to investigate Hillary Clinton...
...and specifically matters related to the Clinton Foundation and Uranium One. This sort of political pressure for criminal investigations is toxic stuff. It's not the way the Justice Department is supposed to work. And any time in a context like this the DOJ issues a letter...
...dangling the possibility of a special prosecutor to investigate the President's opponent, particularly when the attorney general's job is on the line, you have to take seriously the possibility that an egregious abuse of power is either taking place or being contemplated.
That said, it is not clear to me that this is what is happening here. And we should be careful about jumping to conclusions. Let's run through another possibility, one that is far more benign and may (we can hope) be more closer to the truth.
Both in July and in September, House Judiciary Committee Republicans wrote letters to the attorney general calling for a special counsel to investigate a raft of supposed Clinton wrongdoing. Here are the two letters.
judiciary.house.gov/wp-content/upl…
judiciary.house.gov/wp-content/upl…
judiciary.house.gov/wp-content/upl…
judiciary.house.gov/wp-content/upl…
And here is my coverage of the second letter, complete with links back to @qjurecic's writing about the first go-around. lawfareblog.com/there-they-go-…
Sessions is testifying tomorrow. So it's not a total surprise that he felt compelled to answer these letters from the Chairman and majority members of the committee before which he is testifying before he did so.
He can't tell them he has investigated these matters and found them insubstantial, because he hasn't investigated them. He can't tell them he doesn't take seriously concerns by the Chairman of his oversight committee, because, well, you don't do that.
So what I think DOJ may be doing here is declaring a process in which senior career prosecutors will review the matter and make recommendations to the AG or the DAG (more on that formulation in a moment) as to how to proceed. Theoretically, this could lead to a special counsel.
In practice, however, it will not. The reason is that the allegations are not substantial and—at least insofar as I understand them—they will not serve as a proper predicate for a criminal investigation, let alone require a special counsel.
When the attorney general (or the DAG) then dismisses the matter, he will be acting on the presumably unanimous recommendation of his senior career prosecutors.
One piece of evidence that this may be the proper reading of the letter is the phrase in the third paragraph, "the Attorney General has directed...." If this letter were really announcing a review designed to allow Sessions to name a special counsel to appease Trump, his...
participation in the matter would be a grotesque violation of his recusal—which promised non-involvement in all matters in any way related to the 2016 campaign. Certainly, appointing a special counsel to investigate the President's opponent—or contriving to do so—would be a...
grave breach of the recusal. On the other hand, it may not be a breach at all if Sessions is merely saying to career prosecutors: "I've got this letter from the Judiciary Committee. Please review the allegations and make appropriate recommendations to me or, if I'm recused...
While Sessions would almost certainly be recused from reviewing the recommendations of this group, given the subject matter at issue, the text of the letter actually acknowledges this.
That's why, I think, the letter says that "These senior prosecutors will report directly to the Attorney General and the Deputy Attorney General, as appropriate." This is an implicit acknowledgement that, in fact, Sessions will be recused.
In short, I think this letter is best understood not as a hint to Trump that Sessions will do as the President wants, but as a way of shunting the matter to a mechanism that will enable him not to act—or, to be more precise, that will enable Rod Rosenstein not to act.
At least, that's what I hope it is.
Bottom line: Don't panic—yet.
That's all I got.
